Citation Nr: 0620594
Decision Date: 07/14/06 Archive Date: 07/21/06
DOCKET NO. 03-05 294 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for headaches,
dizziness, swelling of the hands, loss of energy and pressure
as secondary to service connected hypertension.
2. Entitlement to an increased rating for hypertension,
currently evaluated as zero percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Chisick, Associate Counsel
INTRODUCTION
The veteran's record of service (DD 214) shows that he has
certified service from March 1975 to December 1993, 5 years
and 2 months of prior active service, and 10 months of prior
inactive service.
When this matter was previously before the Board of Veterans'
Appeals (Board) in October 2004, it was remanded to the
Nashville, Tennessee Regional Office (RO) of the Department
of Veterans Affairs (VA) for additional development. The
case is now before the Board for final appellate
consideration.
FINDINGS OF FACT
1. Headaches, dizziness, swelling of the hands, loss of
energy and pressure are symptoms without an identified
etiologic cause.
2. Hypertension is manifested currently by blood pressure
readings that do not denote diastolic pressure that is
predominantly 100 or more or systolic pressure that is
predominantly 160 or more.
CONCLUSIONS OF LAW
1. The criteria for service connection for headaches,
dizziness, swelling of the hands, loss of energy and pressure
as secondary to service connected hypertension have not been
met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§
3.303, 3.310 (2005).
2. The criteria for a disability rating in excess of zero
percent for hypertension have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code
(DC) 7101 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
VA must apprise the veteran of the evidence needed to
substantiate a claim for benefits, and further allocate the
responsibility for obtaining such evidence. Additionally, VA
must advise the veteran to submit any evidence that pertains
to a claim. The law further provides that VA will make
reasonable efforts to assist a veteran in obtaining the
evidence necessary to substantiate a claim for a benefit
under a law administered by the Secretary, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. 38 U.S.C.A. § 5103A (2002).
Notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a veteran before the initial unfavorable agency
of original jurisdiction ("AOJ") decision on a claim for VA
benefits.
By a May 2002 rating decision, the RO denied the veteran's
claims for service connection for headaches, dizziness,
swelling of the hands, loss of energy and pressure as
secondary to service connected hypertension and for an
increased rating for service-connected hypertension,
currently evaluated as zero percent disabling.
A November 2004 post-remand RO letter fully provided notice
of elements of the evidence required to substantiate claims
for an increased disability rating for hypertension and
advised the veteran of the allocation of responsibility for
obtaining such evidence. Subsequent to the VA's advisement
to the veteran of what evidence would substantiate the
claims, the allocation of responsibility for obtaining such
evidence, and advising the veteran that he should submit all
relevant evidence, de novo review of the claim was
accomplished in February 2006, and a Supplemental Statement
of the Case ("SSOC") was issued.
The rating decision on appeal, the January 2003 Statement of
the Case ("SOC"), and the February 2006 SSOC provided the
veteran with specific information as to why the claims were
being denied and of the evidence that was lacking. The
January 2003 SOC and the February 2006 SSOC supplied the
veteran with the complete text of 38 C.F.R. § 3.159(b)(1),
concerning the need for the veteran to provide any evidence
pertaining to the claim.
In concluding that the notice requirements have been
satisfied, the Board has relied on communications other than
the RO's formal notice letter to the veteran. However, what
the law seeks to achieve is to give the veteran notice of the
elements outlined above. Once that has been done-
irrespective of whether it has been done by way of a single
notice letter, or via more than one communication-the
essential purposes of the law have been satisfied. Here, the
Board finds that, because each of the four content
requirements of proper notice has been met, any error in not
providing a single notice to the veteran covering all content
requirements was harmless. See, e.g., 38 C.F.R. § 20.1102
(2005).
VA has also made reasonable efforts to identify and obtain
relevant records in support of the claim. 38 U.S.C.A.
§ 5103A (a), (b) and (c) (2002). In particular, VA requested
that the veteran either submit his available private medical
records or authorize VA to obtain those records on his
behalf. The veteran did not authorize VA to obtain or
provide private medical records. However, VA did obtain the
veteran's VA outpatient medical records from November 2000
through May 2005. The treatment records were received and
reviewed through May 2005.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim. VA examinations
were conducted in March 2002 and August 2005.
The Board finds that VA has done everything reasonably
possible to assist the veteran, the veteran has not
identified any further evidence to support his claim, and the
record is ready for appellate review.
Analyses of the Claims
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim. The appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
Secondary Service Connection Claim
The veteran contends that he experiences occasional
dizziness, occasional headaches, loss of energy, swollen
hands, and pressure and that these symptoms are related to
his service-connected hypertension. He also asserts that he
never denied having any of these symptoms during his VA
examinations.
In order to establish service connection on a secondary
basis, the evidence must show (1) that a current disability
exists, and (2) that the current disability is proximately
due to, or the result of, a service-connected disability. 38
C.F.R. § 3.310(a). When service connection is thus
established for a secondary condition, the secondary
condition shall be considered a part of the original
condition. Id. See also Libertine v. Brown, 9 Vet. App.
521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187
(1993).
Further, with regard to all claimed disorders, VA must also
ascertain whether there is any basis (e.g., direct,
presumptive or secondary) to indicate that the claimed
disorders were incurred by any incident of military service.
Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v.
Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
Direct service connection may be granted for disability or
injury incurred in or aggravated by active military service.
38 U.S.C.A. §§ 1110, 1131. As a general matter, service
connection for a disability on this basis focuses on (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service. Pond v. West, 12 Vet. App. 341, 346
(1999); Rose v. West, 11 Vet. App. 169, 171 (1998).
In addition, if certain chronic diseases become manifest to a
compensable degree within one year of separation from
service, such diseases are presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309.
Here, at an August 2005 VA examination, the veteran reported
that prior to obtaining treatment for his hypertension, he
experienced severe headaches, but now experienced only
occasional headaches. He also complained of occasional
dizziness when standing up, swelling of the hands, a
sensation of pressure when lying down, and loss of energy.
The VA examiner diagnosed the veteran with essential
hypertension, but concluded that the headaches, dizziness,
swelling of the hands, sensation of pressure, and loss of
energy were not secondary to the veteran's service-connected
hypertension. The VA examiner gave no etiological diagnoses
for these alleged symptoms.
Because the veteran's alleged current symptoms have no
etiological diagnoses, they do not constitute a disability
for which service connection may be granted under any basis.
See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (holding
that pain alone, without a diagnosed or identifiable
underlying condition, does not constitute a disability for
which service connection may be granted).
As to whether an etiological diagnosis for the veteran's
alleged current symptoms should have been determined by the
VA examiner, a VA examination is mandated only where there
are persistent or recurrent symptoms of a disability. See
38 C.F.R. § 5103A(d)(2).
Here, the record does not support that the veteran's
contention that his alleged symptoms are persistent or
recurrent. Contrary to the veteran's statement that he never
denied having any of his alleged symptoms during past VA
examinations, the record shows that at the March 2002 VA
examination, the veteran denied any headaches or dizziness
and only complained of swelling in his lower extremities, not
his hands.
Furthermore, a review of his VA outpatient treatment records
from November 2000 to May 2005 reveals that the veteran did
not persistently complain of all the symptoms he alleges he
currently has. These records, many of which pertain to
follow-up visits for management of the veteran's
hypertension, reflect no complaints, diagnoses, or treatments
for loss of energy. And, as for headaches, while the veteran
complained of mild headaches in November 2000, thereafter, he
either expressly denied and/ or made no complaints of
headaches.
When the veteran started seeking care at VA medical
facilities in November 2000, he reported that he had already
initiated treatment for hypertension elsewhere and presented
with complaints of only two symptoms: an intermittent
pressure sensation in the head and lightheadedness. At that
time, the VA medical provider diagnosed the veteran with
poorly controlled hypertension.
The record shows that adjustments to the veteran's
hypertension treatment regimen and diagnosis of and treatment
for allergic rhinitis relieved these two initial symptoms
such that by February 2002 and thereafter, he either
expressly denied and/ or made no complaints about
lightheadedness or dizziness, and from March 2002 onward, he
made no more complaints about a pressure sensation, except
for a vague June 2003 complaint about a pressure sensation
under the tongue, which was diagnosed by a VA dentist as
being due to intermittent blockage of minor salivary glands
and was treated with the advice to drink water more often.
As for the veteran's remaing alleged symptom, swelling,
although the veteran made four complaints of swelling of his
hands or lower extremities between January 2001 and March
2002, the only instance when such complaint was confirmed on
physical examination was in March 2002, when it was observed
that the veteran's extremities showed mild peripheral edema
(swelling). In addition, although the veteran raised no
complaints of swelling beyond March 2002, on physical
examination in December 2004, he was noted to have minimal
edema over the second and third dorsal metacarpal joints in
the right hand. However, on his next visit in April 2005, he
did not complain of swelling, and no peripheral edema was
noted on physical examination. Likewise, on multiple
occasions both before and after the swelling that was noted
in March 2002, the veteran was observed to have no edema
peripherally and/ or in the extremities.
Thus, the medical evidence record establishes that none of
the veteran's alleged current symptoms have been persistent
or recurrent to mandate an examination to determine their
etiological cause, if any.
For the reasons above, service connection for headaches,
dizziness, swelling of the hands, loss of energy and pressure
as secondary to service connected hypertension is denied.
Increased Rating for Hypertension
The veteran's rating claim is to be decided based upon the
application of a schedule of ratings, which is predicated
upon the average impairment of earning capacity. 38 U.S.C. §
1155; 38 C.F.R. § 3.321(a) and 4.1 (2005). Separate DCs
identify various disabilities. See 38 C.F.R. Part 4 (2005).
The disability ratings evaluate the ability of the body to
function as a whole under the ordinary conditions of daily
life including employment. Evaluations are based on the
amount of functional impairment; that is, the lack of
usefulness of the rated part, system, or the psyche in self-
support of the individual. 38 C.F.R. § 4.10 (2005).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for the higher rating. 38 C.F.R. § 4.7 (2005).
A 10 percent rating for hypertension, which is evaluated
under DC 7101, is authorized where diastolic pressure is
predominantly 100 mm. or more, or systolic pressure is
predominantly 160 mm. or more, or as a minimum evaluation
where an individual with a history of diastolic pressure
predominantly 100 mm. or more requires continuous medication
for control.
For the purpose of applying the laws administered by VA,
hypertension or isolated systolic hypertension must be
confirmed by readings taken two or more times on at least
three different days. For this purpose, the term
hypertension means that the diastolic blood pressure is
predominantly 90 mm. or greater, and isolated systolic
hypertension means that the systolic blood pressure is
predominantly 160 mm. or greater, with a diastolic blood
pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101,
Note 1.
The medical evidence in this case concerning the current
severity of the veteran's hypertension shows blood pressure
readings that collectively do not satisfy the criteria for a
10 percent disability rating. He has not exhibited diastolic
pressure of predominantly 100 mm. or more or systolic
pressure of predominantly 160 mm. or more. Only two
diastolic readings shown reach the minimum 100 mm., and three
systolic readings shown reach the minimum 160 mm.
On the veteran's initial visit to the VA outpatient medical
facility in November 2000, he presented with a diastolic
reading of 102 mm. and a systolic reading of 173 mm. Later,
on that same visit, a diastolic reading of 100 mm. and a
systolic reading of 160 mm. were recorded. And in January
2001, he presented with a diastolic reading of 163 mm. All
of these readings were taken when the veteran first sought
treatment for hypertension at the VA and reflect the initial
diagnosis by VA medical providers of poorly controlled
hypertension. However, subsequent to treatment and health
counseling at the VA, both the veteran's systolic and
diastolic readings dropped substantially and have remained
lower than when he initially presented for care and are well
below the readings required for a 10 percent disability
rating for hypertension.
Thus, the criteria for a 10 percent evaluation for
hypertension under DC 7101 have not been met.
The Board has considered whether the current rating of zero
percent could be increased under any other provision of 38
C.F.R. Parts 3 and 4, see Schafrath v. Derwinski, 1 Vet. App.
589 (1991), and has found in light of the evidence that it
cannot.
DC 7101 directs that "hypertension due to aortic
insufficiency or hyperthyroidism, which is usually the
isolated systolic type," be evaluated "as part of the
condition causing it rather than by separate evaluation."
The evidence reflects that no medical finding has been made
that the veteran's hypertension is due to aortic
insufficiency or hyperthyroidism. Thus, the evidence provides
no basis for evaluation of the veteran's hypertension under a
rating provision other than DC 7101.
Accordingly, a schedular evaluation for hypertension
exceeding zero percent will not be granted.
ORDER
Service connection for headaches, dizziness, swelling of the
hands, loss of energy and pressure as secondary to service
connected hypertension is denied.
An increased rating for hypertension, currently evaluated as
zero percent disabling, is denied.
____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs